THE COMMON CONSTITUTIONALIST

Another compromise plan for the wall

Exclusive: Brent Smith notes Trump is only one trying to broker fair agreement

Brent Smith, aka The Common Constitutionalist, is a constitutional conservative who advocates for first principles – the founders' original intent and enemy of progressives. He is former Navy and a martial arts expert. Smith considers himself just an average Joe with no formal journalism background – but rather than simply complain about the state of our nation, he took to the Internet to battle the left. Check out Brent Smith's blog.

I’ve heard many conservative commentators and pundits speaking about Trump’s national emergency powers and how he should use them.

Top of the list appears to be this scenario.

Negotiations, if you can even call them that, have gone nowhere. So, it’s posited, Trump will appear to back down and agree to end the shutdown – after which he will then invoke his presidential authority under the 1976 National Emergencies Act, [50 U.S.C. 1601, 1621, 1622] and declare a national emergency on the border, secure funding from a number of government sources and get the wall built.

Rather, Trump should declare an emergency prior to signing an agreement to end the government shutdown. Anything less would be ill-advised.

Every party in a negotiation either goes in with leverage or seeks leverage throughout. Trump should not just give away his only point of leverage, which is his power to end the shutdown. Regardless of their foolish rhetoric, Pelosi, Schumer et al., know this, which is why they must continue to hammer Trump on this singular point: ending the shutdown.

And why is supposed legal expert leftist Jeffrey Toobin of CNN insisting that Trump in fact does have the authority to declare a national emergency? Is he being honest, or is this sophism? Are the Democrats purposely setting a trap for Trump to fall into? Is this a potential scenario the dems are trying to set up?

First, Chuck and Nancy’s job is to continue to shutdown negotiations with the president, insisting that he will never get a dime for a wall or any other structure. Next, send out Toobin, the Trump-hating CNN legal beagle. But this time, much to the bemusement of his CNN colleagues, when asked, he surprises everyone by insisting that Trump has the emergency authority.

So Trump ends the shutdown and declares a national emergency. However, Democrats have already secured a leftist judge to declare the emergency unconstitutional. Trump falls into their trap, and it’s tied up in court for months or longer. Democrats win. Rush Limbaugh believes this is what is going on.

But there’s a problem with a court challenge. First, the 1976 National Emergencies Act has gone unchallenged since it was passed by the federal legislature and signed into law by President Gerald Ford 43 years ago. And second, the act is not specific as to presidential authority to declare an emergency. There are only two provisions provided to end a declaration.

[50 U.S.C. 1622] SEC. 202. (a) Any national emergency declared by the President in accordance with this title shall terminate if – (1) there is enacted into law a joint resolution terminating the emergency; or (2) the President issues a proclamation terminating the emergency.

And lest anyone think that a joint resolution might then be possible, think again. A joint resolution is treated identically to that of a bill. It must be passed by both Houses and then signed by the president. Trump isn’t going sign his own termination of emergency.

And because of the vagueness of the 1976 National Emergencies Act, if this specific declaration is deemed unconstitutional, the entire law would have to be.

So in lieu of a declaration of emergency, is there anything more Trump can do in the interim? Not practically, but politically.

What hasn’t been discussed in a while is the DACA kids, although a lot of them are hardly kids anymore.

It was established a while ago that the total cost of the border wall is about $25 billion. Why doesn’t Trump propose a win-win compromise?

Rather than the usual talk of some for all, as in some wall money in exchange for legalizing all the DACA kids, suggest an incremental exchange. For every $5 billion allotted for the wall, 20 percent of the DACA kids would be legalized. And of course the shutdown will be ended, but not before the wall cash is secured and entirely irrevocable. And the next allotment of legalizations can’t happen until the entire $5 billion wall section is completed.

I know the Democrats will never go for it, but it’s just one more compromise put forth that shows the president to be the reasonable one. It also shows the people that his administration is the only party in these negotiations that cares enough to come up with some fresh ideas.